Many homeowner and condominium associations have governing documents which contain provisions prohibiting the installation of satellite dishes and other antennas where they are visible from the street or from neighboring properties. While such provisions have been generally enforceable in the past, recent congressional legislation has substantially changed the law with respect to certain antennas and satellite dishes.

The Telecommunications Act of 1996 provided that this Federal law would preempt (meaning override) local zoning ordinances and private restrictions, including the governing documents of homeowner and condominium associations (Associations). The FCC rule adopted pursuant to Section 207 of the Telecommunications Act (the FCC Rule) provides that associations may not enforce CC&R provisions or rules and regulations with respect to certain antennas which "impair the installation, maintenance or use of" such antennas. The FCC Rule applies to the ability of viewers to receive video programming signals from direct broadcast satellites (DBS), multichannel, multipoint distribution (wireless cable) providers (MMDS) and television broadcast stations (TVBS). The FCC Rule covers DB5 dishes less than one meter in diameter, MMDS dishes less than one meter in diameter on masts less than 12 feet, and TVB5 antennas on masts less than 12 feet.

The FCC Rule specifies that any provision: or rule which unreasonably delays or prevents installation, maintenance or use, unreasonably increases the cost of installation, maintenance or use, or precludes reception of an acceptable quality signal is prohibited. The only exceptions are if the restrictions involve safety or to preserve historic districts. The Association has the burden of proving any restriction permissible under the FCC Rule.

Many questions were left unanswered by the FCC Rule itself. Several rulings have been issued by the FCC since the adoption of the FCC Rule which have clarified some of the issues. The first ruling struck down a municipal ordinance which required an application and imposed a $5.00 application and permit fee (Star Lambert v. City of Meade, Kansas). A second ruling prevented an Association from enforcing a prohibition against installing TV antennas on the roof, holding that the Association did not carry its burden of proof of showing that acceptable quality signals could be obtained with an installation in the attic of the resident (Lubliner v. Potomac Ridge Homeowners Association). The third case invalidated an Association's prior approval procedure and $5.00 permit fee (MacDonald v. Savannah Lakes Village Property Owners Association). The fourth case invalidated an association's prohibition on all dishes and antennas without approval, even though the Association's Architectural Control Committee had a 2-day expedited approval process (CS Wireless Systems v. Property Owners of North Hampton). The fifth ruling involved the installation of a small satellite dish on a balcony of a townhouse. It was held that since the balcony was under the exclusive use and control of the resident, any rules must comply with the FCC Rule, and the outright prohibition against antennas on balconies was invalidated (Frankfurt v. New Century Town Townhouse Association).

These rulings indicate that the FCC is taking a very strict interpretation of the 1996 Act and the FCC Rule. It is clear that the FCC believes that any prior approval process or fee requirement violates the FCC Rule. It is also clear that any attempt to fall within the safety, historic district, or quality signal exceptions will be required to be supported with solid evidence.

Even though certain actions are now prohibited, it does not mean that Associations are prohibited from regulating dishes and other TV antennas entirely. In many, if not most, situations, a quality signal for a small satellite dish can be obtained from a location not visible from the street or neighboring properties. If that is the case, an Association rule requiring that placement is enforceable. If that hidden location does not allow the reception of a quality signal, other less obtrusive locations or screening can be required, as long as they do not cause unreasonable costs or delays.

One major impact of the FCC Rule is that prior approval or fees cannot be imposed on the dishes and antennas covered by the FCC Rule.

The FCC Rule applies to property owned or under the exclusive use or control of an owner, such as patios and balconies. Accordingly, Associations may still prohibit the installation of antennas on roofs or other common areas.

We recommend that Associations consider a progressive rule, which moves from a most restrictive requirement to a less restrictive requirement, according to the signal quality available from different locations. The following is a sample of such a progressive rule.

Antennas one meter or less in diameter or diagonal measurement which are designed for over-the-air reception of signals from direct broadcast satellites (DBS), multi-channel multi-point distribution (wireless cable) providers (MMDS) or television broadcast stations (TVBS), together with their associated mounting hardware and mast, if applicable (an Antenna System) and which are placed, installed or kept on a lot must comply with the following restrictions, unless the particular restriction would impair the user's ability to receive signals from a provider of DBS, MMDS or TVBS (a Provider):

(a) An Antenna System must be placed on the lot in such a manner as to not be visible from any other lot, the common area or any street.

(b) If an Antenna System cannot be placed on the lot in such a manner as to not be visible from any other lot or the common area or any street without impairing the user's ability to receive signals from a Provider, an Antenna System must be screened by landscaping or by some other means so that it is not visible from any other lot, the common area or any street, unless screening would impair the user's ability to receive signals from a Provider, in which case an Antenna System must be screened by landscaping or by some other means to reduce to the greatest extent possible its visibility from other lots, the common area or streets without impairing the user's ability to receive signals from a Provider.

(c) If no other location is available without impairing the user's ability to receive signals from a Provider and an Antenna System must be mounted on a residence or other structure and is visible from any other lot, the common area or any street, the Antenna System must be painted a color which will blend into the background against which the Antenna System is mounted.

(d) Antenna Systems designed to receive video program services from MMDS or TVBS which require masts to receive an acceptable signal must be mounted on masts which do not exceed twelve feet (12') in height above the roofline, provided that no mast shall be higher than the height necessary to establish line of sight contact with the transmitter.

A restriction contained in this section shall be deemed to impair the user's ability to receive signals from a Provider if compliance with the restriction would unreasonably delay or prevent installation, maintenance or use of an Antenna System, unreasonably increase the cost of installation, maintenance or use of an Antenna System or preclude reception of an acceptable quality signal.

No dish which exceeds one meter in diameter or diagonal measurement, or any television or radio antenna on any mast which exceeds twelve feet (12') in height above the roofline may be placed, installed, constructed or kept on any lot without the prior written approval of the Design Review Committee.

Dyekman, Meda, Curtis,

 Cohen & Karow, P.L.C.

 6750 East Camelback Road, Suite 104

Scottsdale, Arizona 85251 (602) 481-0202 (602) 481-0555 (Fax)

This update is only a summary of the new legislation, and is not intended as legal advice for a specific set of circumstances. For further information contact Don Dyekman or Dan Curtis at the above address or phone.